I am a senior editor at Forbes, covering legal affairs, corporate finance, macroeconomics and the occasional sailing story. I was the Southwest Bureau manager for Forbes in Houston from 1999 to 2003, when I returned home to Connecticut for a Knight fellowship at Yale Law School. Before that I worked for Bloomberg Business News in Houston and the late, great Dallas Times Herald and Houston Post. While I am a Chartered Financial Analyst and have a year of law school under my belt, most of what I know about financial journalism, I learned in Texas.

Scalia Leads Supreme Court To Reject Search By Drug-Sniffing Dog

The myth of a U.S. Supreme Court hopelessly divided along liberal/conservative lines took another hit today as Justices Antonin Scalia and Clarence Thomas split with their fellow conservatives to rule that police can’t use a drug-sniffing dog to establish probable cause for a search warrant.

The sniffing of the dog outside the homeowner’s door was itself an illegal search, the court ruled in an opinion written by Scalia, and thus it was prohibited under the Fourth Amendment guaranteeing citizens be secure in their homes and property.

Dissenters said Florida v. Jardines established a new rule heretofore unknown to Anglo-American law. But the odd part is, those dissenters were led by conservative Justice Samuel Alito along with Chief Justice John Roberts, Anthony Kennedy, and, to make things really weird, liberal Stephen Breyer. Scalia and Thomas are normally the first to cry foul when the court departs from traditional common law.

Scalia: The pot-grower’s friend? (Photo credit: Wikipedia)

Writing for the majority, Scalia said officers trespassed on Joelis Jardines when they approached his door with a drug-sniffing dog on a six-foot leash to investigate a tip Jardines was growing pot inside. The dog sat down, as he was trained to do in the presence of drug odors, and the officers used that evidence to obtain a search warrant.

To reach his decision, Scalia relied upon an old understanding of the Fourth Amendment that had fallen into disuse until he revived it in last year’s U.S. vs. Jones, which held that police violated a man’s right to be secure in his property by surreptitiously attaching a GPS tracking device to his car. This is a more restrictive view than the “expectation of privacy” that the high court established in Katz vs. U.S., the 1967 decision that threw out evidence police obtained by attaching a listening device to the exterior of a phone booth.

Today’s decision doesn’t overrule Katz, but it does worry some privacy and criminal-law experts who wonder if the conservative majority is itching to replace the expectation of privacy with a narrower pr0hibition on searches that involve trespassing on a citizen’s property.

“Physical trespass as a form of government surveillance is falling by the wayside,” said Ric Simmons, who teaches criminal procedure at the Ohio State University’s Moritz College of Law. “Soon enough we will have drones that can follow cars. This decision doesn’t address that situation, or satellites, or going through third parties like OnStar to track a suspect.”

Scalia said that while the Supreme Court has approved of some kinds of property searches, such as of open fields, “when it comes to the Fourth Amendment, the home is first among equals.” At the core of that amendment is “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion,” he wrote, citing an earlier decision.

This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.

This is hardly out of character for Scalia, who has shown a strong law-and-order streak when it comes to matters like obscenity, but a definite hostility to drug searches of homes. In one of his most famous decisions, Kylo v. U.S., he ruled that police couldn’t use infrared equipment to detect marijuana grow lamps in a man’s attic.

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A very well reasoned opinion. I am not surprised at all that this was not a vote down the “party-line”, as is usually expected by the public. Please feel free to check out my write-up on my blog: http://www.raffandraff.com/2013/04/29/can-police-use-a-drug-sniffing-dog-without-probable-cause/